In defense of Hillary Clinton’s defense.

In 1975, Hillary Clinton defended a man accused of rape. The man passed a polygraph and ultimately he entered a plea and was sentenced to either probation or a short jail sentence or walked away scott free, depending on the reports you read. Clinton gave an interview where she talks about her role as the man’s attorney. You can listen to it here.

This case got a lot attention when Clinton first announced her candidacy for the Democratic ticket. It was the usual “she got a pedophile off and laughed about it!” “She loves rapists!” “She blamed the victim!” Or “I don’t mind she defended him, but she should not have gone after the victim.”

I have to admit that all of these comments gave me pause. I mean, these folks are born and bred Americans. They claim to love America more than muslims who were born here, more than black Americans I mean just they love it a lot. Like a whole lot. Yet, the love seems to stop at the second amendment. Maybe they hate mass surveillance as well. But there is no love for the 6th Amendment.

Here, here’s the substance of that pesky amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Let’s look at that last line – assistance of counsel for his defence. That means a criminal defense attorney. Someone who defends him. You will notice it doesn’t say “only if he is innocent” or “if we feel his case is worthy of a defense and only the defense we think feels good to us.” It says in all criminal prosecutions. That means all. Even pedophiles. Even rapists. Even murderers. Everyone. All.

That’s step one. Great, so everyone is entitled to a defense. We then decided that this meant that the defense attorney had to be provided at the government’s expense if the accused couldn’t afford one. Therein come the Hillary Clinton’s of the world. Appointed counsel. Folks that do this work for almost no money but because, well, it’s like the thing we should do when asked to.

And man, it turned out she did a good job! People are angry that a person who was asked to do a job did it too well for their liking. Hey, could you kinda cook my food a little bit good, but not too good. Land that plane, but not totally land it totally well. Build my house, but leave out some of the nails, I don’t want it to be too sturdy.

All of that would be crazy talk, right?

But for criminal lawyers, actually defending our clients is viewed as a bad thing, making us evil beings who love crime. Doing the job the constitution requires us to do earns us the wrath and disgust of the people who are protected by it.

Crazy talk.

We are supposed to cross-examine the heck out of people, we are supposed to file motions questioning the truthfulness and accuracy of evidence, of witnesses. This entire method is actually premised on science – we keep testing it until the only thing that it could possibly be is that the accused is guilty. And since we know humans are fallible, we don’t even require total proof, just proof beyond a reasonable doubt (which, in the fourth circuit, we can’t even explain to jurors. But that’s a post for another time.)

Doesn’t that make sense? Do you not want only truly guilty people convicted and punished? Do you want people to be accused and convicted with a half-hearted defense that lets the government do whatever it wants? Don’t worry too much, more than 98% of cases end in pleas these days so the right to trial doesn’t mean very much anyway. You are getting what you want.

But I have to ask, why do you hate your rights so much?

The law is incredibly complex, even when it should be very simple. We have hearsay and exceptions to hearsay and times when hearsay is admissible no matter if the witness is available or not (although, thanks to that super liberal Justice Scalia, those times are now limited.) There are cross-examination techniques that work and those that come off clumsy and harsh. But you are entitled – yes you! To a defense that kicks ass and takes names. I know you’ve never done anything wrong in your life but that’s not the point. The point is that shit happens and if it does the Bill of Rights has your back.

Here’s the truth – I’ve cross examined rape accusers before, both kids and adults. I don’t mind it. I think it works better when a woman does it, and if there were no rape shield laws I would ask about prior sexual encounters and tastes. I question everything. That’s my job. I don’t believe in flying the plane and then saying fuck it to the landing.

The law is very clear. Criminal defense attorneys are to use everything at their disposal that is legal in order to defend their clients.

I am proud of what I do and proud of my colleagues and our criminal defense bar. We are the lawyers you’d most likely want to have a beer with. When shit goes down, we are the ones who will stand by your side, even after your mama says you are no longer her child. (It’s happened.)

Mrs. Clinton’s defense of this man was completely ethical. Forget ethical, it was required. What wasn’t required was that interview.

You want to be upset, be upset that she said she thought her client was guilty. Now, see, I didn’t say be mad that she defended a man she thought was guilty because that doesn’t matter. If you think someone is guilty and that bothers you, you don’t have to take the case. The 6th Amendment doesn’t say you are entitled to a defense ONLY if people think you are not guilty. I don’t care if you did it. If Mrs. Clinton was truly uncomfortable, she should have withdrawn from the case. Better yet, she should have kept her mouth shut about her thoughts on the client himself even after the case was over.

2 Comments

Shannon
on October 10, 2016 at 12:38 pm

I agree that it would have been better to keep her mouth shut about his guilty, though to be fair to her, he did plead guilty. I do want to point out that she did try to withdraw from the case and was shot down.

You are very right. I have no love of Mrs. Clinton’s politics, but she did what she was supposed to do, which is defend the accused to the best of her ability. So many are willing to forget that everyone is entitled to being as well defended as possible, regardless of their crime, no matter how guilty they look or how awful the crime. I hope if I am ever in a similar situation I can find a lawyer as ethical as she was back then. Sadly politics have apparently corrupted her, as it has so many others(although that is just my opinion). Thank you for pointing out the reality, and thank you for being a professional that helps keep our justice system running in proper balance.